February 29, 2016

Supreme Court in Flux

Justice Clarence Thomas celebrated his tenth anniversary of not asking questions during oral arguments in a case about gun rights. He fired off not one but ten questions to Justice Department lawyer Ilana H. Eisenstein, who was defending a federal law that bans anyone with a misdemeanor domestic violence conviction from owning a gun. Two Maine men claimed that pleading guilty to hitting their partners shouldn’t stop them from owning guns. Thomas’ focus asked about any other area in which “a misdemeanor violation suspends a constitutional right.” The sound of Thomas’ voice produced “audible gasps” from the audience.

The case, Voisine v. United States, isn’t about the Second Amendment although Thomas tried to make it the issue. The high court agreed to review only the question of whether law can be violated by reckless conduct rather than intentional actions and refused the petition’s second question, whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment. A 4-4 split would hold up the ruling from the 1st Circuit Court that rejected the men’s arguments.

Despite constitutional law, Republicans on the Senate Judiciary Committee announced that the committee will not hold hearings on any of President Obama’s nominees for the Supreme Court. In addition, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) stated that will not support a vote and may not accept a White House invitation to talk about a nominee. Grassley said:

“I don’t care if I ever go down in history. I’m here to do my job.”

Grassley’s job is to fulfill his duties, honor the U.S. Constitution, and prepare for confirmation hearings. Instead, he puts his ideological interests ahead of his job—one that pays $174,000 a year. Grassley is also blocking the nomination of a top health official in revenge for the Obama administration’s not investigating Planned Parenthood for the 12th time.

Scalia’s death came almost exactly in the middle of the current court term, and several cases with serious consequences will be determined by a court split between four progressives and four conservatives—with one of those sometimes voting with the progressives. For these cases, a split will retain the lower court’s decision, and a 5-3 will probably turn progressive.

Former Virginia Gov. Robert McDonnell: Scalia’s death may put him in prison. Convicted of all 11 corruption-related charges against him, he was sentenced to two years in prison. The 4th Circuit Court affirmed his conviction, but the Supreme Court decided to hear the case. Justice Ruth Bader Ginsburg may let McDonnell out of jail because she narrowed what counted as honest services fraud in Skilling (2010). That was for a CEO, however, and not an elected official.

Friedrichs v. California Teachers Association: A wealthy organization tried to stop public sector unions from collecting mandatory dues to fund collective bargaining. The lower court ruled against them, meaning that the unions in California and 22 other states keep their right to collect dues with a 4-4 split or majority in their favor.

Evenwel v. Abbott: Texas attempted to distort the “one-person, one-vote” democracy, established in Reynolds v. Sims (1964), by claiming that districts are determined not by residents but eligible voters. The lower court upheld counting all residents. With Scalia’s vote, many states might be forced to redraw their congressional maps to give more power to white voters and less to communities with large numbers of immigrants.

Zubik v. Burwell: The relationship between “religious liberty” and the Affordable Care Act, first covered in Hobby Lobby, reappears in this case of whether signing forms opting out of providing contraceptives for employees violates a corporation’s religious beliefs. Every circuit court except the 8th upheld the president’s administration rules allowing women to obtain health plans that cover birth control through corporations’ statements that they will not provide this insurance. Justice Anthony Kennedy may vote with progressives to uphold the rules, but a split could discriminate against women in the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota).

Whole Woman’s Health v. Hellerstedt: In this threat to Roe v. Wade, the case covers an appeal from a lower court allowing burdensome restrictions on clinics that perform abortions. A 4-4 tie would allow Texas to create these restrictions, but it would not require the rest of the country to accept them. If Justice Anthony Kennedy sides with the four progressives because the Texas law exerts an “undue burden,” the Texas decision would be overturned.

Fisher v. University of Texas: This zombie case that just won’t die also comes from Texas. The affirmative action case concerns the school’s including race in its admissions plan. This decision gets only seven votes because Justice Elena Kagan recused herself after working on the case when she was solicitor general. If Kennedy moves to the right, the court will strike down the university’s affirmative action program will be struck down. Scalia’s death eliminates the possibility of a tie vote.

There’s no doubt of how Scalia would vote. Among other egregious statements during oral arguments, he said that he was not “impressed by the fact that the University of Texas may have fewer” Black students. He added, “Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many Blacks as possible.” Kennedy seems to lean toward affirmative action, which would allow the University of Texas to retain its current policy.

United States v. Texas: The three-judge panel of the 5th Circuit upheld a federal district ruling against President Obama’s plan to defer deportation for almost five million undocumented immigrants and refused to stay that decision. A 4-4 split would be a win for Texas, defeating the president’s program in three states—Texas, Louisiana, and Mississippi—but authorizations could proceed in the other 12 circuit courts.

Carbon emissions reductions: President Obama charged the EPA with a 32-percent reduction by 2030, but the Supreme Court temporarily blocked the plan with a 5-4 emergency order, put on hold pending a decision from the DC Circuit Court. The generally liberal court refused to grant the stay before the high court made this move and will hear the case this summer. Two of the three judges on the panel of the lower court assigned to hear the case are Democratic appointees, and the third, a George W. Bush appointee, leans toward supporting the EPA plan.

The high court could decide to rehear cases with a 4-4 split when a ninth justice is confirmed.

The impact of Scalia’s death has already been felt: Dow Chemical has decided not to appeal a $1.06 billion judgment against them and settle for $835 million. A 2013 Kansas court ruling was found liable for price-fixing through collusion with four other chemical companies in overcharging customers for products used to make urethane foam. Scalia’s death meant that a 4-4 split decision would require Dow to pay the $1.06 billion or they would be facing a more liberal court if President Obama succeeds in putting a justice on the Supreme Court. Dow pulled the case because it needed Scalia’s vote

Dow isn’t alone in wanting a conservative court. Oral arguments indicated that Tyson Foods might lose almost $5.8 million in a class action judgment, and Wal-Mart is also awaiting the results of a $187 million class action suit. Microsoft is trying to throw out a class action lawsuit from Xbox 360 owners claiming the videogame console has a design defect.

Scalia has led conservative judges in curbing class-action litigation against businesses, giving 5-4 victories to Wal-Mart (2011) and Comcast (2013). He has given billions of dollars to corporations by protecting them from liability, limiting access to justice for workers and consumers, and allowing the companies to evade regulations in climate, discrimination, and monopolies. He also gave corporations the right to spend unlimited funds in elections through Citizens United so that they can hire their own legislative members, both state and national. Now, the Supreme Court is evenly split, and progressives have appointed the majority of judges in nine of the 13 federal courts of appeal.

Scalia was a radical right-wing ideologue who used his purported “original” philosophy to support his personal beliefs. He favored unlimited corporate election spending and uncontrolled gun ownership. He opposed reproductive rights, universal health care, same-gender marriage, affirmative action, environmental protection, and rights for voting, immigrants, labor, and LGBT people. Questioned about his vote to appoint George W. Bush as president in 2000, he snapped, “Get over it.” His majority opinion allowing law enforcement to chase people without probably cause or reasonable suspicion, Scalia quoted Proverbs: “The wicked flee when no man pursueth.”

As for the GOP position that President Obama shouldn’t nominate a justice, 14 presidents, one-third of the total, appointed 21 justices during presidential election years starting with George Washington. Over half were Republicans includingAbraham Lincoln, Herbert Hoover, William Howard Taft, Dwight Eisenhower, Richard Nixon, and Ulysses S. Grant. Ronald Reagan’s nomination for justice was approved during his last year. Six presidents filled Supreme Court seats after their successors had been elected—Benjamin Harrison, Andrew Jackson, Martin Van Buren, John Tyler, and John Adams.